Opinion
2:19-cv-00567-JR
02-28-2024
DAVID EDGAR WONNACOTT, Plaintiff, v. CAPTAIN DAVID HEEHN, et al., Defendants.
FINDINGS AND RECOMMENDATION
JOLIE A. RUSSO, UNITED STATES MAGISTRATE JUDGE
Defendant Richard Carpenter moves for summary judgment pursuant to Fed.R.Civ.P. 56 in relation to pro se plaintiff David Wonnacott's claims under 42 U.S.C. § 1983. For the reasons set forth below, Carpenter's motion should be granted.
BACKGROUND
At all relevant times, plaintiff was an inmate at Two Rivers Correctional Institution (“TRCI”) in Umatilla, Oregon. On March 6, 2017, plaintiff first saw Carpenter - a private practice orthopedic surgeon - at his clinic, Motion Orthopedics, in Hermiston, Oregon. Carpenter Decl. ¶¶ 2, 6 (doc. 90). Plaintiff had obtained a Health Referral from the Oregon Department of Corrections due to complaints of right ankle pain. Id. at ¶ 6.
At that visit, plaintiff “reported . . . that he suffered a fracture of his ankle 5 years earlier and underwent open reduction and internal fixation of the fracture by another provider. The fracture was fixated with a plate and interfragmentary screw on the fibula along with a ‘TightRope' fixation system.” Id.; Woll Decl. ¶ 7 (doc. 91). Based on plaintiff's exam, Carpenter “recommended removal of the hardware and examination of the sural nerve for potential nerve entrapment.” Id.
Surgery was scheduled for April 10, 2017, at Good Shepherd Medical Center. Carpenter Decl. ¶ 7 (doc. 90). During that surgery, Carpenter “removed a neuroma [thickening of nerve tissue and scarring that forms as the nerve attempts to heal from an injury] from the area where Mr. Wonnacott had reported pain and sensitivity, and then removed the hardware.” Id.; Woll Decl. ¶ 8 (doc. 91). “The interfragmentary screw broke as it was being removed from the fibula, leaving the tip of the screw inside the bone.” Id. Based on his intra-operative observations, Carpenter resolved “the appropriate course of action was to leave the broken screw where it was as it was interosseous [inside the bone] and would potentially break the fibula with attempt at removal.” Carpenter Decl. ¶ 7 (doc. 90).
“[A]n intra-operative x-ray was taken to verify the hardware removal and the location of the broken interfragmentary screw.” Id. That imaging “showed a portion of the interfragmentary screw in the distal metadiaphyseal region of the fibula, approximately 2-cm above the level of the ankle.” Id. “The screw was completely inside the bone and was not rubbing or otherwise coming in contact with any nerves.” Id.
On April 25, 2017, plaintiff visited Carpenter for routine post-operative care. Id. at ¶ 8. At that time, plaintiff was “much improved” and denied any neurological pain or numbness. Id.; Carpenter Decl. Ex. 101, at 1 (doc. 90); Woll Decl. ¶ 9 (doc. 91). Carpenter summarized his findings in a letter to defendant Mark Patton, a medical provider at TRCI, explaining there was a screw thread that remained within the shaft of plaintiff's fibula, but that it “should give him absolutely no symptoms.” Second Am. Comp. pg. 9 (doc. 18); Carpenter Decl. ¶ 8 (doc. 90); Carpenter Decl. Ex. 101, at 1 (doc. 90). Carpenter also expressed his opinion that it was “the neuroma overlying the plate” that had been causing plaintiff's pre-operative pain and indicated plaintiff would need to use crutches to ambulate, but “there was no reason to see him back.” Carpenter Decl. ¶ 8 (doc. 90); Carpenter Decl. Ex. 101, at 1 (doc. 90).
On October 19, 2017, the Oregon Department of Corrections made another Health Referral to Carpenter. Carpenter Decl. ¶ 9 (doc. 90). Plaintiff presented to Carpenter at his clinic on November 9, 2017, “secondary to complaints of pain in his right ankle with weightbearing.” Id. On exam, Carpenter observed “no abnormalities of the ankle . . . alignment was appropriate and there was no instability.” Id.; Woll Decl. ¶ 10 (doc. 91). Imaging performed in-office “showed some mild narrowing on the lateral compartment of the ankle, but no evidence of any taler dome abnormalities.” Id. Carpenter concluded plaintiff “was likely suffering from early degenerative changes of his ankle.” Id. He injected a corticosteroid into plaintiff's right ankle and recommended non-steroidal anti-inflammatory medication for pain relief. Id.
Carpenter has not seen or treated plaintiff since November 9, 2017. Carpenter Decl. ¶ 10 (doc. 90). However, on November 22, 2017, he did sign a Work Release/Restrictions form stating that plaintiff no longer needed an ambulatory aid or device. Id.
In April 2019, plaintiff commenced this action. Plaintiff's allegations specific to Carpenter are as follows:
Defendant was directly involved in the surgery on plaintiff's fibula, a “hardware removal” in which he broke off one of the heads of the screws & left the rest in plaintiff's fibula. The reason for the “hardware removal” surgery was plaintiff's body was aggressively rejecting hardware from a historic surgery. Defendant and ODOC medical staff conspired to hide the x-rays and the fact that hardware was not removed, causing the inability to bear weight.
Defendant Dr. Richard Carpenter, acting in his individual capacity while exercising his individual & official duties under color of his job authority as a private correctional provider which resulted in the violation of United States Constitution Right: 8th Amendment cruel & unusual punishment, deliberate indifference, malice, the unnecessary & wanton infliction of pain while acting under color of state law.Second Am. Comp. pg. 28 (doc. 18).
On December 4, 2023, Dr. Carpenter filed the present motion for summary judgment as to the claims asserted against him. The following day, the Court provided plaintiff with a “Summary Judgment Advice Notice,” explaining this lawsuit's procedural posture and what was expected from plaintiff to survive summary judgment. As of the date of this Findings and Recommendation, plaintiff has not filed a response to Carpenter's motion.
Plaintiff has claims asserted against TRCI staff that remain following summary judgment.
STANDARD OF REVIEW
Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, affidavits, and admissions on file, if any, show “that there is no genuine dispute as to any material fact and the [moving party] is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a).
Substantive law on an issue determines the materiality of a fact. T.W. Elec. Servs., Inc. v. Pac.Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987). Whether the evidence is such that a reasonable jury could return a verdict for the nonmoving party determines the authenticity of the dispute. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The moving party has the burden of establishing the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving party shows the absence of a genuine issue of material fact, the nonmoving party must go beyond the pleadings and identify facts which show a genuine issue for trial. Id. at 324.
Special rules of construction apply when evaluating a summary judgment motion: (1) all reasonable doubts as to the existence of genuine issues of material fact should be resolved against the moving party; and (2) all inferences to be drawn from the underlying facts must be viewed in the light most favorable to the nonmoving party. T.W. Elec., 809 F.2d at 630.
DISCUSSION
To succeed under 42 U.S.C. § 1983, a plaintiff must demonstrate that: (1) the conduct complained of deprived him or her of an existing federal constitutional or statutory right; and (2) the conduct was committed by a state actor or a person acting under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988) (citations omitted). Carpenter argues that summary judgment is warranted because neither element is met in this case - specifically, Carpenter “was not and is not a ‘state actor'” and his “treatment did not violate Plaintiff's constitutional rights.” Def.'s Mot. Summ. J. 2 (doc. 89).
I. Whether Dr. Carpenter Qualifies as a State Actor
Generally, only a state actor, and not a private individual or entity, may be liable under 42 U.S.C. § 1983 because it “excludes from its reach merely private conduct, no matter how discriminatory or wrong.” Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50 (1999) (citation and internal quotations omitted). As such, there is no right to be free from the infliction of constitutional deprivations by private parties. Nevertheless, “a § 1983 action can lie against a private party when he is a willful participant in joint action with the State or its agents.” Kirtley v. Rainey, 326 F.3d 1088, 1092 (9th Cir. 2003) (citation and internal quotations omitted). The ultimate issue in determining if a party is subject to suit under this statute is whether “the alleged infringement of federal rights [is] fairly attributable to the government.” Id. (citation and internal quotations omitted). While “[w]hat is fairly attributable as state action is a matter of normative judgment,” courts employ “four different criteria” to identify state action: (1) public function; (2) joint action; (3) governmental compulsion or coercion; and (4) governmental nexus. Id. (citations and internal quotations omitted). Satisfaction of any one test is generally sufficient to establish state action. Id.
Here, the uncontravened record before the Court evinces Carpenter is a private citizen who works at a private medical practice. At the time he provided medical care to plaintiff, Carpenter: (1) “was not and never ha[s] been employed by the State of Oregon, the Oregon Department of Corrections, or [TRCI]”; (2) “did not and do[es] not have a contract with the State of Oregon, the Oregon Department of Corrections, or [TRCI] to provide medical care to inmates”; and (3) “was not paid for [his] services by the State of Oregon, the Oregon Department of Corrections, or [TRCI].” Carpenter Decl. ¶¶ 2-6 (doc. 90). Instead, Carpenter's services were furnished at his independently operated clinic (several miles away from TRCI) and “charges were billed to Mr. Wonnacott and his insurer.” Id.
Accordingly, irrespective of whether the public function, joint action, compulsion, or nexus test governs, a jury could not reasonably infer that Carpenter's actions were done on behalf of or in conjunction with the state. See Frank v. Cascade Healthcare Cmty., Inc., 2013 WL 867387, *21-23 (D. Or. Mar. 6, 2013), aff'd, 688 Fed.Appx. 461 (9th Cir. 2017) (in the absence of any affirmative evidence from the plaintiff, private hospital and its staff were not state actors under the public function, joint action, compulsion, or nexus tests); see also Chasse v. Humphreys, 2009 WL 3334912, *2-12 (D. Or. Oct. 13, 2009) (no state action where emergency medical services were rendered by a private company and its staff, even where that company was heavily regulated by Oregon law).
In sum, plaintiff proffers no support for his contention that Carpenter is a state actor or was acting under color of state law at the time of his 2017 treatment and surgery. There is no indication Carpenter was appointed or paid by the state, or that the state directed a specific outcome in regard to the medical care Carpenter provided; rather, those decisions were within Carpenter's sole discretion. While Carpenter reported to TRCI about plaintiff's medical condition, he did so as an independent party. Carpenter's motion is granted in this regard.
II. Whether Plaintiff's Rights Were Violated
The Eighth Amendment requires prison officials to provide humane conditions of confinement by ensuring that inmates receive adequate food, clothing, shelter, and medical care. Farmer v. Brennan, 511 U.S. 825, 832 (1994). An adult in custody must establish, both objectively and subjectively, that conditions of confinement are cruel and unusual. Wilson v. Seiter, 501 U.S. 294, 297-98 (1991). To satisfy the objective component, the plaintiff must allege a deprivation that is in relation to a “sufficiently serious” medical need. Id. at 298. “[A] serious medical need is present whenever the failure to treat a prisoner's condition could result in further significant injury or the unnecessary and wanton infliction of pain.” Lolli v. Cnty. of Orange, 351 F.3d 410, 419 (9th Cir. 2003) (citations and internal quotations omitted).
To satisfy the subjective component, the plaintiff must demonstrate that the prison official was “deliberately indifferent” to a substantial risk of serious harm. Farmer, 511 U.S. at 834. Deliberate indifference in this context means that the official “knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he also must draw the inference.” Id. at 837. Only such indifference can offend “evolving standards of decency” in violation of the constitution. Estelle v. Gamble, 429 U.S. 97, 106 (1976).
Even presuming Carpenter qualified as a state actor, there is no disputed issue of material fact as to the violation of plaintiff's Eighth Amendment rights. Carpenter attempted to find a physical cause for plaintiff's right ankle pain. Carpenter Decl. ¶ 6 (doc. 90). In addition to an examination, Carpenter performed a corrective surgery and routine post-operative care, after which plaintiff indicated he was doing well and his symptoms had resolved. Id. at ¶¶ 7-8; Woll Decl. ¶¶ 7-9 (doc. 91).
Although an interfragmentary screw broke as it was being removed from plaintiff's fibula during surgery, the uncontested expert medical evidence in this case demonstrates: (1) “broken screws happen with hardware removal” and “[i]t is not a breach of the standard of care for a screw to break off in the bone during hardware removal”; (2) the broken screw was “contained completely within the bone,” such that it “would have been more of a risk . . . to attempt to remove”; (3) the broken screw “not rubbing or otherwise coming in contact with any nerves that would cause pain, discomfort, or any other symptoms to Mr. Wonnacott”; and (4) Carpenter met the standard of care, both in terms of his initial recommendation to perform surgery and in the actual performance of that surgery. Carpenter Decl. ¶ 11 (doc. 90); Woll Decl. ¶¶ 6, 12-13 (doc. 91).
Further, the undisputed expert medical evidence reflects that the pain plaintiff experienced six months following his surgery was likely related to degenerative changes, as “there is no mechanical reason for Mr. Wonnacott's alleged pain issues” based on examination findings and imagining. Carpenter Decl. ¶ 9 (doc. 90); Woll Decl. ¶¶ 6, 14 (doc. 91). In other words, plaintiff's “alleged ongoing lower extremity symptoms” were “not . . . cause[d]” by Carpenter's treatment or surgery. Woll Decl. ¶ 6 (doc. 91). Finally, there is no evidence Carpenter purposefully failed to respond to plaintiff's possible medical needs.
Thus, the record before the Court does not signal that Carpenter knew of and disregarded an excessive risk to plaintiff's health or safety. Stated differently, there is no evidence plaintiff was facing a substantial risk of serious harm between March 2017 and the filing of this lawsuit, or that Carpenter was deliberately indifferent. Significantly, plaintiff does not proffer any contradictory argument or evidence to support his claims. See Justice v. Rockwell Collins. Inc., 117 F.Supp.3d 1119, 1134 (D. Or. 2015), aff'd, 720 Fed.Appx. 365 (9th Cir. 2017) (“if a party fails to counter an argument that the opposing party makes . . . the court may treat that argument as conceded”) (citation and internal quotations and brackets omitted); see also Herrington v. Bristol, 2019 WL 7598855, *20-21 (D. Or. July 29, 2019), adopted by 2020 WL 265192 (D. Or. Jan. 17, 2020), aff'd, 2022 WL 1421442 (9th Cir. May 5, 2022) (“mere disagreement with a physician's medical decisions does not establish deliberate indifference as a matter of law” and the party alleging the Eighth Amendment violation must come forth with evidence showing the provider's “treatment was medically unacceptable under the circumstances”) (citing Toguchi v. Chung, 391 F.3d 1051, 1058 (9th Cir. 2004)).
In essence, plaintiff's allegations sound in medical malpractice. However, a complaint that a medical provider has been negligent in diagnosing or treating a medical condition is insufficient under the Eighth Amendment. See Estelle, 429 U.S. at 106 (“[m]edical malpractice does not become a constitutional violation merely because the victim is a prisoner”); see also Hamby v. Hammond, 821 F.3d 1085, 1092 (9th Cir 2016) (“Eighth Amendment doctrine makes clear that [a] difference of opinion between a physician and the prisoner - or between medical professionals -concerning what medical care is appropriate does not amount to deliberate indifference”) (citations and internal quotations omitted); Farmer, 511 U.S. at 844-45 (because “a prison official's duty under the Eighth Amendment is to ensure reasonable safety,” officials who respond reasonably are not liable) (citation and internal quotations omitted).
RECOMMENDATION
For the reasons stated herein, Carpenter's Motion for Summary Judgment (doc. 89) should be granted. This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgment or appealable order. The parties shall have fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the court. Thereafter, the parties shall have fourteen (14) days within which to file a response to the objections. Failure to timely file objections to any factual determination of the Magistrate Judge will be considered as a waiver of a party's right to de novo consideration of the factual issues and will constitute a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to this recommendation.